Agency Agreement
----------------
AGREEMENT, dated as of December 2, 1997 between Xxxxxxx Controls,
Inc., a Wisconsin corporation (the "Company"), and The Chase Manhattan
Bank, a New York corporation ("Chase Manhattan").
WITNESSETH:
WHEREAS, the Company and Chase Manhattan Bank Delaware (the
"Trustee") have entered into an indenture, dated as of February 22, 1995
(the "Indenture"), with respect to the Company's unsecured debentures,
notes or other evidences of indebtedness, to be issued in one or more
series; and
WHEREAS, the Company proposes to issue from time to time up to
$500,000,000 in aggregate principal amount of its medium-term notes under
the Indenture, with such notes to be sold pursuant to a selling agency
agreement, dated December 2, 1997, between the Company and BancAmerica
Xxxxxxxxx Xxxxxxxx, First Chicago Capital Markets, Inc., Xxxxxxx, Sachs &
Co., X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxxx Xxxx Xxxxxx and
NationsBanc Xxxxxxxxxx Securities, Inc. (the "Selling Agency Agreement");
and
WHEREAS, pursuant to Section 5.02 of the Indenture the Company
desires to appoint Chase Manhattan as the office or agency of the Company
in the Borough of Manhattan, The City of New York, where Debt Securities
having a Place of Payment (as defined in the Indenture) therein may be
presented or surrendered for payment and surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Company
in respect of the Debt Securities or of the Indenture may be served; and
WHEREAS, the Company desires Chase Manhattan to act as Issuing,
Exchange Rate and Calculation Agent for the Debt Securities;
NOW, THEREFORE, pursuant to Section 5.02 and 3.06 of the Indenture
and in consideration of the covenants herein contained, it is agreed as
follows (words and phrases not otherwise defined in this Agreement having
the definitions given thereto in the Indenture):
1. (a) Pursuant to Section 5.02 of the Indenture, the Company hereby
appoints Chase Manhattan at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, as the office or agency of the Company in
the Borough of Manhattan, The City of New York, where Debt Securities
having a Place of Payment therein may be presented or surrendered for
payment and surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Company in respect of the Debt
Securities or of the Indenture may be served. The Company further appoints
Chase Manhattan at said Corporate Trust Office as Security Registrar under
the Indenture for the Debt Securities and the Security Register for the
Debt Securities shall be maintained thereat. The Company further appoints
Chase Manhattan Issuing, Exchange Rate and Calculation Agent for the Debt
Securities.
(b) Chase Manhattan accepts its appointments as provided
for in the preceding paragraph.
(c) Either the Company or Chase Manhattan may terminate
such appointments of Chase Manhattan, or any of them, at any time by giving
the other 30 days written notice thereof to Chase Manhattan at 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Such notice, if by Chase
Manhattan, shall be signed by a Vice President, Senior Trust
-2-
Officer or a Trust Officer, and if by the Company by its President, a Vice
President, its General Counsel, its Secretary, or its Treasurer.
(d) As evidence of such appointments, the Company hereby
delivers to Chase Manhattan certified resolutions of its Board of Directors
(or committee thereof) providing for such appointments.
(e) In performing its duties and obligations hereunder,
Chase Manhattan shall not be liable except for its own negligence or
willful misconduct. Chase Manhattan undertakes to perform such duties and
only such duties as are specifically set forth herein, in the Indenture and
in Exhibit A, entitled "Medium-Term Note Administrative Procedures", to the
Selling Agency Agreement ("Exhibit A"), and no implied covenants shall be
read into the Indenture, this Agreement or the Selling Agency Agreement
against Chase Manhattan. Anything herein, in the Indenture or in the
Selling Agency Agreement to the contrary notwithstanding, in no event shall
Chase Manhattan be liable for special, indirect or consequential loss or
damage of any kind whatsoever.
2. (a) As a Paying Agent, Chase Manhattan is authorized to make
payment of the principal of and premium (if any) and interest on the Debt
Securities in accordance with the provisions of the Indenture and the Debt
Securities either out of funds deposited by the Company with Chase
Manhattan or by the Company's credit to Chase Manhattan's account of
amounts paid by Chase Manhattan upon presentation of such Debt Securities,
but shall have no obligation to advance its own funds in connection with
the performance of its duties and obligations hereunder.
-3-
(b) Any moneys received by Chase Manhattan under this
Section shall, until used or applied as provided in the Indenture, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Chase
Manhattan shall not be liable for interest on any such moneys held by it
under this Agreement. Chase Manhattan may at any time, and shall at the
written request of the Trustee signed by one of its Vice Presidents, Senior
Trust Officers or Trust Officers, pay over part or all of such moneys to
the Trustee to be held by the Trustee on the same trusts as they were held
by Chase Manhattan, in which event Chase Manhattan will be relieved of all
further responsibility in respect of moneys so paid over.
(c) In all cases of redemption of Debt Securities
pursuant to the Indenture, the Company shall give or cause to be given to
Chase Manhattan written notice thereof including, in case only a portion of
the Debt Securities is to be redeemed, the numbers of Debt Securities
selected for redemption and, in case any Security is to be redeemed in part
only, the portion of the principal amount thereof to be redeemed on or
before the date of mailing the notice of redemption. The Company agrees to
give Chase Manhattan notice at least 60 days (or such shorter period
acceptable to Chase Manhattan) in advance of the date fixed for redemption.
3. As Security Registrar, Chase Manhattan is authorized to
register in accordance with Section 3.06 of the Indenture, the transfer of
and to exchange Debt Securities presented to it for such purposes and to
register in accordance with Section 3.07 of the Indenture Debt Securities
in substitution of mutilated, destroyed, lost or stolen Debt Securities and
to deliver new Debt Securities authenticated by it as authenticating agent
of the Trustee for a like
-4-
aggregate principal amount, provided, however, Chase Manhattan may refuse
to register the transfer of or to exchange Debt Securities or to register
such substituted Debt Securities until it is satisfied that such transfer,
exchange or registration is legally in order. The Company will indemnify
Chase Manhattan and hold it harmless for its refusal in good faith to
register the transfer of or to exchange or to substitute Debt Securities
which it in its judgment deems improper or unauthorized.
4. Chase Manhattan, as Paying Agent and Security Registrar of the
Company, is hereby authorized and directed by the Company to cancel any
Security surrendered for payment, redemption, registration of transfer, or
exchange and to request the Trustee or its authenticating agent (so long as
such request is accompanied by such cancelled Security(ies) together with
the Security(ies) to be issued due to such payment, redemption,
registration of transfer, or exchange in an aggregate principal amount
equal to the unpaid aggregate principal amount of such cancelled Debt
Securities) to authenticate the new Debt Securities in the names and
denominations so delivered to the Trustee or said authenticating agent, and
Chase Manhattan shall then deliver such authenticated Debt Securities when
received from the Trustee or said authenticating agent to the Persons
entitled thereto.
5. Chase Manhattan, as Issuing Agent of the Company, is hereby
authorized and directed by the Company, upon receipt of written
instructions from a representative of the Company listed in Section 9 of
this Agreement regarding the completion and delivery of some or all of the
Debt Securities, (i) to complete Debt Securities as specified in such
instructions, (ii) to cause each such Security to be manually authenticated
by any authorized officer of Chase Manhattan, as Authenticating Agent of
the Trustee, and (iii) to deliver each Security as
-5-
instructed. Instructions pursuant to this Section 5 with regard to the
issuance of Debt Securities (i) shall include the information necessary to
complete the Debt Securities so as to fully and accurately set forth the
terms of the Debt Securities and to indicate when, how and to whom the Debt
Securities are to be delivered, (ii) shall constitute a continuing
representation and warranty to Chase Manhattan by the Company that the
issuance and delivery of the Debt Securities has been duly and validly
authorized by the Company and that the Debt Securities, when completed,
authenticated and delivered pursuant to such instructions, will constitute
the legal, valid and binding obligations of the Company and (iii) must be
received by Chase Manhattan not later than 3:00 p.m., New York City time,
on the Business Day preceding the date on which delivery of the Debt
Securities is to occur.
6. Chase Manhattan, as Exchange Rate Agent of the Company, is
hereby authorized and directed by the Company, in the event the currency
for a Debt Security is denominated in other than U.S. dollars (the
"Specified Currency"), to determine the exchange rate for converting all
payments in respect of such Security in U.S. dollars based on the highest
firm bid quotations for U.S. dollars received by Chase Manhattan, as
Exchange Rate Agent, at approximately 11:00 a.m., New York City time, on
the second Business Day preceding the applicable payment date (or, if no
such rate is quoted on such date, the last date on which such rate was
quoted) from three recognized foreign exchange dealers in the City of New
York selected by Chase Manhattan, as Exchange Rate Agent, and approved by
the Company (one of which may be Chase Manhattan) for the purchase by the
quoting dealer, for settlement on such payment date, of the aggregate
amount of the Specified Currency payable on such payment date in respect of
all Debt Securities denominated in such Specified Currency.
-6-
7. Chase Manhattan, as Calculation Agent, is hereby authorized and
directed by the Company, to determine and disclose the interest rate and
other information for the Debt Securities as provided for in the applicable
Security.
8. (a) The Company agrees to (i) to pay Chase Manhattan from time
to time reasonable compensation, as agreed between the Company and Chase
Manhattan, for all services rendered by it as Paying Agent, Security
Registrar, Issuing Agent, Exchange Rate Agent, Calculation Agent and as the
office or agency of the Company in the Borough of Manhattan, The City of
New York, where the Debt Securities may be presented for registration of
transfer, exchange, or redemption, (ii) to reimburse Chase Manhattan upon
its request for all reasonable expenses, disbursements and advances
incurred or made by it in the capacities specified in (i) above, including
the reasonable compensation and the expenses and disbursements of its
counsel, except any such expense, disbursement or advance as may be
attributable to Chase Manhattan's negligence or bad faith, and (iii) to
indemnify Chase Manhattan for, and to hold it harmless against, any loss
claim, liability or expense incurred without negligence or bad faith on
Chase Manhattan's part, arising out of or in connection with the
administration of its duties in the capacities specified in (i) above,
including the cost and expense of defending itself against any such claim
or liability.
(b) The Company agrees to indemnify, protect and hold
Chase Manhattan harmless from and against any and all loss, claim,
liability or expense (including without limitation thereto reasonable
compensation and the expenses and disbursements of its counsel) resulting
from any act, omission, delay or refusal by it in reliance upon (i) written
advice of counsel, (ii) instruction, request or order from the Company or
(iii) any Security, notice,
-7-
direction, consent, certificate, affidavit, endorsement, assignment,
statement or other paper or document believed by it to be genuine and
signed or presented by the proper party or parties, or resulting from
accepting any Debt Securities or effecting any registration or transfer of
Debt Securities, except in each case any such loss, liability or expense as
may be attributable to Chase Manhattan's negligence or bad faith.
(c) In acting under this Agreement and in connection with
the Debt Securities, Chase Manhattan is acting solely as Agent for the
Company and the Trustee and does not assume any obligation or relationship
of Agency or Trust for or with the holders or the Debt Securities except
its obligations to hold funds in trust pursuant to Section 2 of this
Agreement.
9. Chase Manhattan is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties and it shall not be liable for
any action taken or omitted by it in good faith or in accordance with the
instructions of any such officer.
10. Chase Manhattan shall, in accordance with Section 3.10 of the
Indenture, deliver to the Trustee for cancellation all Debt Securities
surrendered to Chase Manhattan for payment, redemption, registration of
transfer or exchange.
11. The Company shall mail or cause to be mailed to Chase
Manhattan a copy of all communications sent to the holders of the Debt
Securities not later than the date such communication is mailed to such
holders. The Company agrees to furnish Chase Manhattan
-8-
with an executed counterpart of each supplemental indenture to the
Indenture within 5 days of the date of execution of any such supplemental
indenture.
12. Simultaneously with entering into this Agreement Chase
Manhattan shall enter into an agreement with the Trustee accepting its
appointment as Authenticating Agent of the Trustee and as required by
Section 8.14 of the Indenture.
13. Chase Manhattan shall have the rights, duties, and immunities
set forth in Sections 3.09, 5.04, 6.02(c) and 8.04 of the Indenture to the
same extent as though such Sections had been set forth herein at length.
14. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York.
15. This Agreement may be executed in any number of counterparts,
each of which, when so executed and delivered, shall be an original, but
all such counterparts shall constitute but one and the same instrument.
-9-
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed and their respective corporate seals to be hereunto
duly affixed and attested by their respective officers thereunto duly
authorized, all as of the day and year first above written.
XXXXXXX CONTROLS, INC.
By: /s/ Xxx Xxxxxxxxx
---------------------
Title: Treasurer
Attest: /s/ Xxxx Xxxxxxx
--------------------
Title: Secretary
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Title: Senior Trust Officer
Attest: /s/ Xxxx Xxxx
--------------------------
Title: Trust Officer
-10-
